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1 The Nature of Construction
Contracts
A variety of factors make a construction contract different from most other types
of contracts. These include the length of the project, its complexity, its size and
the fact that the price agreed and the amount of work done may change as it
proceeds. As a result, the allocation of these risks is a very important part of the
contract since these factors always result in additional costs being incurred. This
inevitably raises the question of who should pay.
Complex nature
The structure may be a new building on virgin ground. It may involve the demo-
lition of an existing building and its full reconstruction. It could involve partial
demolition and rebuilding, or the refurbishment and extension of an existing build-
ing or structure. This may be mostly below ground (in which case it is engineer-
ing) or above ground (in which case it is building). Building, however, includes
foundations and other underground works. A building contract can consist of
activities and services carried out both above and below ground level.
The term ‘construction contract’ or ‘construction law’ is used throughout this
book. The term includes contracts for building works and as well as engineering
contracts. Chitty on Contracts introduced for the first time in 1999 a chapter on
the subject in its 28th edition (see ch. 37). Architects traditionally design and
administer building contracts. The Architects Registration Board (ARB, see
www.arb.org.uk) now regulates their academic and practical training. Consulting
civil engineers design civil engineering works and administer their construction.
A large engineering contract will usually make provision for administration and
supervision by site-based resident engineers.Modern contracts also provide for
the appointment of project managers to coordinate and administer the contract.
What is a construction contract?
In Modern Engineering (Bristol) Ltd v. Gilbert-Ash Northern [1974] AC 689,
Lord Diplock at 717B described a building contract as:
‘an entire contract for the sale of goods and work and labour for a lump sum
price payable by instalments as the goods are delivered and the work done. Deci-
sions have to be made from time to time about such essential matters as the
making of variation orders, the expenditure of provisional and prime cost sums
and extension of time for the carrying out of the work under the contract.’
It is important to realise that Lord Diplock was referring to a contract made
using a standard form of building contract. Such contracts usually make provi-
sion for interim payments at regular intervals as the work proceeds, whereas a
contract that is described as entire is a product of the common law. It may
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2 Construction Contract Law
make provision for stage payments, but in essence, it requires the contractor to
complete all its work before any entitlement to payment arises. A modern
example of such an entire contract is Discain Project Services Ltd v. Opecprime
Developments Ltd [2001] EWHC Technology 450. The carrying out and
completion of this contract (whether made using a standard form contract or
entire) differs from other manufacturing processes. HHJ Newey OR in Emson
Eastern v. EME Developments (1991) 55 BLR 114 described the differences at
p. 125, within the context of practical completion of the work:
‘I think the most important background fact which I should keep in mind
is that building construction is not like the manufacture of goods in a
factory. The size of the project, site conditions, the use of many materials
and the employment of various kinds of operatives make it virtually impos-
sible to achieve the same degree of perfection that a manufacturer can. It
must be a rare new building in which every screw and every brush of paint
is absolutely correct.’
There is no special body of rules that applies to such contracts, whether they are
described as building, engineering or construction contracts. Lord Reid said in
Modern Engineering that where the parties enter into detailed building contracts
there were ‘no overriding rules or principles covering their contractual relation-
ships beyond those which generally apply’. This principle was supported by Lord
Lloyd of Berwick in Beaufort Developments (NI) Ltd v. Gilbert-Ash (NI) Ltd
[1998] UKHL [1988] 1 AC 191 where he stated that:
‘Standard forms of building contracts have often been criticised by the
courts for being unnecessary obscure and verbose. But in fairness one
should add that it is sometimes the courts themselves who have added to
the difficulty by treating building contracts as if they were subject to
special rules of their own.’
The fact that the ordinary rules of the law of contract apply is subject to an impor-
tant qualification. Legislation passed following the recommendations of the
Latham Report (Constructing the Team, 1994) has treated construction contracts as
a special category requiring statutory intervention. The introduction of Housing
Grants Construction and Regeneration Act 1996, part II (hereafter HGCRA 96)
has also altered fundamentally the allocation of risks in construction contracts. All
parties before entering into contracts have to consider how they will deal with the
legislation. It also provides a much wider definition of what, for the purposes of
the legislation, is a construction contract.
Section 104(1) of the HGCRA 96 states that a ‘construction contract’ includes:
• the carrying out of construction operations
• arranging for the carrying out of construction operations by others, whether
under a subcontract to him or otherwise
• providing his own labour, or the labour of others, for carrying out con-
struction operations.
Section 104(2) extends the definition of a construction contract to any agree-
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The nature of construction contracts 3
ment to carry out architectural, design or surveying work, or the provision of
advice on building, engineering, interior or exterior decoration, or the laying
out of landscape. Note that a contract of employment is specifically excluded
from the statutory definition. This definition is much wider than that given by
Lord Diplock above. It includes the carrying out of design activities and the
giving of advice, so widening the range of activities covered by the legislation.
Construction operations are further defined by Section 105 as including:
• all normal building and civil engineering works, including operations such
as scaffolding, site clearance and painting and decorating as well as
contracts for repair and maintenance
• consultants agreements on construction operations
• labour-only contracts
• contracts of any value.
Certain contracts are excluded from the operation of the Act: see Section
105(2). The reason for this is that they did not suffer from the same ills iden-
tified by the Latham Report. The petrochemical and process industries are
excluded, and so are contracts concerning the supply and fixing of plant
(including supporting steelwork). These activities are not classified as
‘construction operations’. The off-site manufacture of components to be
incorporated into the construction work is also excluded, and so are contracts
with residential occupiers (see Section 106). There is however, a substantial
body of case law resulting from contracts with residential occupiers. These
involve either the use of standard forms of contracts or other contracts that
make specific provision for adjudication. This is discussed further in Chapter
16. In a number of cases the meaning of construction operations has been
considered. Homer Burgess Ltd v. Chirex (Annan) [2000] BLR 124 held that
pipework was part of a pharmaceutical plant and not a construction operation.
By contrast, in Palmer Ltd v. ABB Power Construction (1999) BLR 426 the
subcontractor work was held to come into the definition. This was so despite
the main contract work being outside the definition. Staveley Industries Plc v.
Odebrecht Oil & Gas Services (2001) 98 (10) LSG 46 held that structures on
the sea bed below low water mark are not part of the United Kingdom for the
application of the Act.
Under the Act there was a special requirement that the contract has to be in
writing. ‘Writing’ was widely defined by Section 107, so word of mouth agree-
ments referring to a written document or an exchange of letters are sufficient to
bring a contract into the section. Whether the agreement is in writing has been
anissue in many references to adjudication. In Grovedeck Ltd v. Capital
Demolition Ltd [2000] BLR 181 an oral agreement was entered into. The parties
went to adjudication under the Scheme for Construction Contracts despite the
protests of one side that the Act did not apply. HHJ Bowsher QC refused
to enforce the adjudicator’s award, finding that there was no written contract.
The Court of Appeal in RJT Consulting Engineers Ltd v. DM Engineering
(Northern Ireland) Ltd (2002) EWCA Civ 270 had to consider the meaning of
Section 107. All three judges interpreted the section as requiring the express
terms of the agreement to be in writing, not the agreement itself. (See Chapter
16, where the issue of writing is discussed further in relation to
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4 Construction Contract Law
adjudication.) As a result of this decision many contracts was considered to be
excluded from the legislation. After consultation with industry, new legislation
has been passed but not implemented yet: The Local Democracy, Economic
Development and Construction Act 2009 (LDEDC 09). Part 8 deals with
Construction Contracts. Clause 139 (1) repeals Section 107. This means that all
contracts whether made orally or in writing are now subject to the Act. However,
Section 139(2) requires the adjudication agreement to be in writing. When
implemented, these changes will only affect contracts entered into after that
date, so for some time two sets of rules will apply. Note also that private finance
initiative contracts and finance agreements are excluded from the legislation on
grounds of policy.
Risk allocation
Like all contracts, construction contracts are about the prior allocation of risk.
Windward (1992) draws attention to the construction industry’s need to make
a profit on the employment of capital:
‘If risk is an essential ingredient of the system which generates your profit,
it is inevitable that there must be a structure for resolving disputes. It brings
the relationship of the disputants back into balance so that life can resume
its normal course.’
Windward’s reference was primarily to arbitration, the main method of dispute
resolution prior to the introduction of adjudication. It is of course a matter of
debate whether the introduction of statutory adjudication by the HGCRA 96
achieves that balance between disputing parties. It was conceived by the Latham
Report as essentially a ‘quick fix’ in that it was intended to resolve disputes as they
arose rather than at the end of the project, this being the usual practice before its
introduction. Standard forms of contract try to allocate risk equitably between the
parties. In essence, the payment provisions of the HGCRA 96 can also be described
as an attempt to introduce a measure of equity into the contractual relationship
between contractor and subcontractor. Risks are varied in construction contracts,
and include many factors that can affect the progress of the work.
1 The unforeseen:
(a) unexpected ground conditions
(b) unpredicted weather conditions
(c) a shortage of material
(d) a shortage of skilled labour
(e) accidents, whether by fire, flood or carelessness
(f) innovative design that does not work or proves impossible to construct.
2 The length of the contract. Projects vary in the time needed for completion,
from days to years. During that time the risk allocation agreed at the time of
contracting can change substantially. This is especially so with regard to the
availability of materials and its costs. A contractor may have ‘bought’ the job
because work was scarce at the time and the price of components low.
3 The number of participants, and parties in the project and the corresponding
length of contractual chain cause their own problems. The risk of insolvency
increases the longer the chain.
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